1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PATRICK NOEL, Case No. 21-cv-08801-EMC

8 Plaintiff, ORDER GRANTING PETITIONER’S

MOTIONS FOR RECONSIDERATION

9 v. AND APPOINTMENT OF COUNSEL;

REFERRING CASE TO FEDERAL

10 SUSAN PEERY, PUBLIC DEFENDER; STAYING CASE 11 Respondent. Docket Nos. 8, 11

12 13 14 I. INTRODUCTION 15 Patrick E. Noel, a California state prisoner, filed this pro se action for a writ of habeas 16 corpus pursuant to 28 U.S.C. § 2254, challenging his conviction from the Mendocino County 17 Superior Court. See Docket No. 1 (“Petition”). The Court reviewed the Petition pursuant to 28 18 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases, dismissed Claims 1, 2, 4, 5, 19 and 7; ordered Mr. Noel to make an election as to the Claims 3 and 6; and held Claims 8 and 9 in 20 abeyance pending that election. Docket No. 6 (“Screening Order”). Mr. Noel filed an 21 “opposition” to the Screening Order’s holding regarding claims 3 and 6, which the Court construes 22 as a motion for reconsideration. See Docket No. 8 (“Reconsideration Motion”). Because of 23 intervening Ninth Circuit precedent, the Court GRANTS Mr. Noel’s Reconsideration Motion. 24 Because of the unusually complicated procedural posture of this action, the Court GRANTS Mr. 25 Noel’s request that he be appointed counsel. See Docket No. 11 (“Counsel Motion”). 26 II. BACKGROUND 27 The instant Petition is Mr. Noel’s third appearance before this Court. The following 1 habeas petition (“2019 Petition”):

2 This case has a long procedural history.

3 In 2005, Mr. Noel was convicted in Mendocino County Superior Court of attempted murder, two counts of assault with a firearm, 4 unlawful participation in a criminal street gang (see Cal. Penal Code § 186.22(a)), endangering a child, two counts of kidnapping, and 5 vehicle theft. Sentence enhancement allegations were found true. He was sentenced to a total of 41 years in prison. 6 He appealed. The California Court of Appeal affirmed the 7 conviction with a sentence modification and the California Supreme Court denied review. He also filed unsuccessful state habeas 8 petitions.

9 Mr. Noel then sought relief in federal court. His first federal petition for writ of habeas corpus was denied by this Court in 2012. 10 See Noel v. Lewis, N. D. Cal. No. 08-cv-3777 EMC. On appeal, the Ninth Circuit reversed in part, granting relief on Mr. Noel’s claim 11 that his right to due process was violated because the evidence was insufficient to support the conviction for participation in a criminal 12 street gang. See Noel v. Lewis, Ninth Cir. No. 12-16679.

13 As a result of his success in the federal habeas action setting aside the conviction for participation in a criminal street gang, see Cal. 14 Penal Code § 186.22(a), Mr. Noel was resentenced. On January 28, 2016, Mr. Noel was resentenced to a total term of 39 years. Docket 15 No. 1 at 76.

16 After he was resentenced, Mr. Noel again sought habeas relief in the state courts. A petition he filed in the Mendocino County Superior 17 Court was denied on April 25, 2017. Docket No. 1 at 89-96. A petition he filed in the California Court of Appeal was denied on 18 December 28, 2017, with numerous citations to procedural bars. Docket No. 1 at 103. The California Supreme Court summarily 19 denied a petition for writ of habeas corpus from Mr. Noel on November 14, 2018, in Noel (Patrick E.) on Habeas Corpus, Cal. S. 20 Ct. No. S247350.

21 Mr. Noel reports that he filed another habeas petition claiming that he had been denied his right to be present at the January 28, 2016 22 resentencing. Docket No. 15 at 4. That petition was granted by the Mendocino County Superior Court on October 22, 2018, and his 23 case was sent back for a new resentencing. See id. The January 28, 2016 resentencing was set aside by the state court because Mr. Noel 24 had not been present at the proceeding and had not personally waived his presence. See Docket No. 12 at 3. Before the 25 resentencing, Mr. Noel filed a motion for new trial that was denied. See Docket No. 15 at 5-7. The Mendocino County Superior Court 26 again resentenced Mr. Noel on or about December 20, 2019 to a total of 37 years in state prison. Docket No. 12 at 14. The sentence 27 imposed at the December 20, 2019 resentencing proceeding is Mr. Noel filed another direct appeal following his December 20, 1 2019 resentencing. . . . In summary, the relevant state procedural history is as follows: After his conviction of one of several crimes 2 was set aside, Mr. Noel was resentenced on January 28, 2016 (the “first resentencing”). That resentencing was later set aside, and Mr. 3 Noel was resentenced again on December 20, 2019 (the second resentencing”). 4 5 Docket No. 16 at 1-3, Noel v. Warden, Case No. 3:19-cv-03118-EMC (N.D. Cal. Nov. 20, 2020). 6 The Court dismissed the 2019 Petition as Younger-barred because an appeal of Mr. Noel’s 7 2019 re-sentencing was still pending in state court. See generally, id. That appeal was 8 subsequently denied in a reasoned opinion. See People v. Noel, Appeal No. A159257 (Cal. Ct. 9 App. Dec. 14, 2020).1 Mr. Noel then filed a petition for review in the California Supreme Court, 10 which was summarily denied. See People v. Noel, Appeal No. S266774 (Cal. S. Ct. Mar. 10, 11 2021). The instant Petition followed. 12 As noted above, in its order screening the Petition the Court dismissed Claims 1, 2, 4, 5, 13 and 7. See Screening Order at 4-8. Mr. Noel did not challenge the dismissal of these claims. See 14 generally, Recon. Mot. Thus, the only claims at issue are Claims 3, 6, 8, and 9: 15 • Claim 3: During the 2005 criminal trial, defense counsel rendered ineffective 16 assistance by failing to (a) suppress inflammatory gang evidence, (b) properly 17 investigate, and (c) file discovery motions to obtain exculpatory evidence, see Pet. 18 at 19- 212; 19 • Claim 6: During the 2005 criminal trial, gang experts relied on witness testimony 20 not separately admitted, in violation of the Confrontation Clause, see id. at 31-34; 21 • Claim 8: The Mendocino County Superior Court erred in denying Mr. Noel’s 22 motion for a new trial excluding any gang evidence, see id. at 41-45; and 23 1 Although Mr. Noel did not provide a copy of this opinion, the Court was able to obtain it from 24 the website of the First District Court of Appeal. For Mr. Noel’s benefit, the Court notes that this is proper. Courts “may take notice of proceedings in other courts, both within and without the 25 federal judicial system, if those proceedings have a direct relation to matters at issue.” United States v. Black, 482 F.3d 1035, 1041 (9th Cir. 2007). Court orders and other court documents are 26 proper subjects of judicial notice, see id., as are records of court proceedings, see Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006). A court “may take judicial notice on its own” or 27 after a party requests that it do so. Fed. R. Evid. 201(c). 1 • Claim 9: The prosecution committed a Brady violation by failing to turn over 2 exculpatory evidence during the 2019 motion for a new trial, see id. at 46-48. 3 In the Screening Order, the Court deemed Claims 3 and 6 to be second-or-successive and 4 held that Mr. Noel must seek permission from the Ninth Circuit before pursuing these claims in 5 the instant Petition. See Screening Order at 5-6. The Court deemed Claims 8 and 9 cognizable 6 but held them in abeyance pending the resolution of the issues surrounding Claims 3 and 6. See 7 id. at 8-9. 8 III. LEGAL STANDARD 9 This Court may entertain a petition for writ of habeas corpus “in behalf of a person in 10 custody pursuant to the judgment of a State court only on the ground that he is in custody in 11 violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A 12 district court considering an application for a writ of habeas corpus shall “award the writ or issue 13 an order directing the respondent to show cause why the writ should not be granted, unless it 14 appears from the application that the applicant or person detained is not entitled thereto.” 28 15 U.S.C. § 2243. Summary dismissal is appropriate where the allegations in the petition are vague 16 or conclusory, palpably incredible, or patently frivolous or false. See Hendricks v. Vasquez, 908 17 F.2d 490, 491 (9th Cir. 1990). 18 IV. DISCUSSION OF RECONSIDERATION MOTION 19 As noted above, this is the third federal habeas petition Mr. Noel has filed in this Court. 20 Claims 3 and 6 challenge events that occurred during Mr. Noel’s 2005 criminal trial, and Claims 8 21 and 9 challenge the 2019 re-sentencing. See generally, Pet. 22 The Petition must be evaluated in light of the Antiterrorism and Effective Death Penalty 23 Act of 1996 (“AEDPA”). “AEDPA imposes significant limitations on the power of federal courts 24 to award relief to prisoners who file ‘second or successive’ habeas petitions.” United States v. 25 Lopez, 577 F.3d 1053, 1059 (9th Cir. 2009). A federal habeas petition is “second or successive” 26 “if the facts underlying the claim occurred by the time of the initial petition, [] and if the petition 27 challenges the same state court judgment as the initial petition.” Brown v. Muniz, 889 F.3d 661, 1 successive habeas corpus application under section 2254 that was presented in a prior application 2 shall be dismissed.” 28 U.S.C. § 2244(b)(1) (emphasis added). 3 In the Screening Order, the Court concluded Claims 3 and 6 were second-or-successive. 4 Mr. Noel argued that these claims were not second-or-successive under authority which allows 5 habeas petitioners to attack a new judgment which intervenes between the first-filed petition and 6 the petition at bar. See Recon. Mot. (citing Magwood v. Patterson, 561 U.S. 320 (2010), Wentzell 7 v. Neven, 674 F.3d 1124 (9th Cir. 2012)). 8 At the time that the Court issued its screening order, precedent did not clearly support Mr. 9 Noel’s argument. Although the Supreme Court allowed a habeas petitioner to challenge “his 10 resulting, new sentence,” it expressly noted that the petitioner was not challenging “his original, 11 undisturbed conviction.” Magwood, 561 U.S. at 342 (emphasis in original) (“This case gives us 12 no occasion to address that question, because Magwood has not attempted to challenge his 13 underlying conviction.”). Similarly, the Ninth Circuit allowed a petitioner to file a “first petition 14 challenging the amended judgment of conviction,” Wentzell, 674 F.3d at 1126, but did not 15 expressly state that the petitioner could challenge the original conviction, see generally, id. See 16 also Clayton v. Biter, 868 F.3d 840, 845 (9th Cir. 2017) (allowing a habeas petition to proceed 17 where it “d[id] not ‘attempt[ ] to challenge his underlying conviction,’” but instead “s[ought] only 18 to challenge a new and intervening judgment”). Moreover, other circuit courts of appeal had 19 considered this precise situation and held that a petitioner could not challenge his original 20 conviction in a petition filed after the judgment was amended, and the Supreme Court had 21 acknowledged these decisions but left them undisturbed in Magwood. See Magwood, 561 U.S. at 22 342 n. 16 (“Several Courts of Appeals have held that a petitioner who succeeds on a first habeas 23 application and is resentenced may challenge only the ‘portion of a judgment that arose as a result 24 of a previous successful action.’”) (quoting Lang v. United States, 474 F.3d 348, 351-352 (6th Cir. 25 2007); citing Walker v. Roth, 133 F.3d 454, 455 (7th Cir. 1997) and Esposito v. United States, 135 26 F.3d 111, 113–114 (2d Cir. 1997)). Considering the Ninth Circuit’s ambiguity on this issue, the 27 Supreme Court’s express refusal to consider the issue in Magwood, and the weight of other 1 was issued. 2 However, while Mr. Noel’s Reconsideration Motion was pending, the Ninth Circuit issued 3 a published opinion which discussed the application of the “second or successive” bar. In Creech 4 v. Richardson, the petitioner was sentenced to death in Idaho state court, later obtained federal 5 habeas relief, was re-sentenced in Idaho state court, and then filed a second federal habeas 6 petition. See 59 F.4th 372, 376 (9th Cir. 2023) (reciting case history). The petitioner raised 7 claims in his second habeas petition which previously had been presented in his first habeas 8 petition. See id. at 390 (reciting procedural background to those claims). The district court 9 rejected those claims as second-or-successive. See id. On appeal, the Ninth Circuit clarified that 10 Wentzell applied to this circumstance, and that under Magwood the petitioner could proceed on the 11 resurrected claims. See id. at 390-91. 12 Like the petitioner in Creech, Mr. Noel seeks to raise claims which were presented in his 13 first habeas petition and which attack his original conviction. Like the petitioner in Creech, Mr. 14 Noel was re-sentenced between the adjudication of his first federal habeas petition and the filing 15 of the instant petition. Thus, like the petitioner in Creech, under Ninth Circuit precedent Mr. Noel 16 may resurrect claims from the previous petition. 17 The Court GRANTS Mr. Noel’s Reconsideration Motion and vacates its earlier dismissal 18 of Claims 3 and 6. 19 Following the stay discussed below, the Court will require the government to respond to 20 Claims 3 and 6 as well as Claims 8 and 9 (which previously were found cognizable). 21 V. DISCUSSION OF COUNSEL MOTION 22 In addition to reconsideration of the Court’s Screening Order, Mr. Noel requested 23 appointment of counsel. See Docket No. 11 (“Counsel Motion”). 24 The Sixth Amendment’s right to counsel does not apply in habeas corpus actions. See 25 Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). Unless an evidentiary hearing is 26 required, the decision to appoint counsel is within the discretion of the district court. See id.; 27 Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir. 1984); Chaney v. Lewis, 801 F.2d 1191, 1196 (9th 1 limiting it to: (1) capital cases; (2) cases that turn on substantial and complex procedural, legal or 2 mixed legal and factual questions; (3) cases involving uneducated or mentally or physically 3 impaired petitioners; (4) cases likely to require the assistance of experts either in framing or in 4 trying the claims; (5) cases in which the petitioner is in no position to investigate crucial facts; and 5 (6) factually complex cases. See generally 1 J. Liebman & R. Hertz, Fed. Habeas Corpus Prac. & 6 Proc. § 12.3b at 383-86 (2d ed. 1994). Appointment is mandatory only when the circumstances of 7 a particular case indicate that appointed counsel is necessary to prevent due process violations. 8 See Chaney, 801 F.2d at 1196; Eskridge v. Rhay, 345 F.2d 778, 782 (9th Cir. 1965). 9 Considering these factors, the Court finds that appointment of counsel is warranted in this 10 instance. Mr. Noel is indigent, the Petition involves complex a lengthy and complex procedural 11 history which will bear on Mr. Noel’s ability to pursue his claims, and as shown above this is a 12 rapidly evolving area of the law. Moreover, the Court notes that Mr. Noel was appointed counsel 13 in his prior appeal to the Ninth Circuit, see Docket No. 4, Noel v. Lewis, Appeal No. 12-16679 14 (9th Cir.), and this counsel continued to represent Mr. Noel in proceedings upon remand to this 15 Court, see Docket No. 45, Noel v. Walker, Case No. 08-3777-EMC (N.D. Cal.). 16 Accordingly, the Court shall refer this action to the Federal Public Defender to assist in 17 locating counsel for Petitioner. 18 VI. CONCLUSION 19 For the foregoing reasons, the Court orders as follows. 20 1. Petitioner’s Reconsideration Motion is GRANTED. Docket No. 8. This action 21 will proceed as to Claims 3, 6, 8, and 9. 22 2. Petitioner’s Counsel Motion is GRANTED. Docket. No. 11. Pursuant to Section 23 XI of General Order No. 2 of the Criminal Justice Act Plan for the United States District Court for 24 the Northern District of California, Petitioner is REFERRED to the Federal Public Defender for 25 location of counsel. Counsel will be able to seek payment for his or her representation of 26 Petitioner as provided in 18 U.S.C. § 3006A(d) and (e) and General Order No. 2 of the Criminal 27 Justice Act Plan, IV-B. The Clerk shall provide a copy of this order to the Federal Public 1 3. All proceedings in this action are stayed until an attorney is appointed to represent 2 Petitioner. Once such attorney is appointed, the Court will schedule a case management 3 conference. 4 4. The Court will defer service of the petition until after the case management 5 conference so that appointed counsel may have an opportunity to review the petition and 6 determine if s/he plans to file an amended petition or proceed on the initial petition. 7 This order disposes of Docket Nos. 8 and 11. 8 9 IT IS SO ORDERED. 10 11 Dated: July 27, 2023 12 13 ______________________________________

EDWARD M. CHEN

14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27